Hiring an Attorney and Making Bond

If you know you are being investigated in connection with a criminal offense, especially a felony offense, you should consult with an experienced criminal defense attorney immediately. First, by involving an attorney at this stage, the attorney will be able to give you advice as to whether you should make any statements to investigators or allow a search of your property. Always remember, you do not have to give a statement to the police and any statement will be used against you. Likewise, unless the police have a search warrant, you have an absolute right not to allow the police to search your property. In addition, an experienced attorney, if called during the investigation stage, will often be able to: (1) obtain information regarding the investigation so that you can make intelligent decisions regarding how to proceed; (2) attempt to convince investigators and/or prosecutors not to go forward with a prosecution; (3) in state court felony cases, make a presentation to the grand jury on your behalf urging that it not return an indictment against you; and (4) make arrangements so that, if you are eventually charged, you can turn yourself in, so as to avoid being arrested at your home or work.

In state court, a person is entitled to have bail set in all cases except for capital murder cases. In federal court, prosecutors must prove a person is a danger to the community or not likely to show up to court appearances before bail can be denied. Often, in federal court, a person may be released on their “own recognizance” without the need for bail. If bail has been set, you can post the bail in one of two ways. The first way is that you or a family member can post the full bail amount. The advantage of doing it this way is that, assuming you show up to your court appearances and abide by the bail conditions, you or your family member will get that money back once your case is finished. The second way, if you cannot afford to post the full amount, is that you can go through a bail bondsman. Bail bondsmen, however, charge a fee (usually between 10 percent and 20 percent of the bail amount) and you do not receive that money back at the end of the case. Bail bondsmen also may ask you to post collateral. An experienced criminal defense attorney will be able to put you in touch with a bail bondsman if that is necessary and often, if you are referred by an attorney, you will pay a lower percentage fee and have less stringent collateral requirements. If you are arrested in one of the smaller municipalities in Dallas County, it is sometimes necessary to hire an attorney in order to get a bond set the night of the arrest. There is one thing about which you must also be aware. In state court in Dallas County, if you have a court appointed attorney and are able to make bond, the judge will then require you to hire your own attorney. If you truly cannot afford an attorney, some judges will eventually appoint you an attorney if you arrive at court without an attorney and prove to the Court that you are, in fact, unable to hire one. Other judges, however, when confronted with a person on bond who repeatedly arrives at Court without an attorney will forfeit the person’s bond and put the person in jail before again appointing an attorney.

With both your liberty and reputation at stake, you don’t want to hire the wrong attorney. Do not make the mistake that some people do and simply go through the yellow pages calling attorneys in order to find the lowest bidder. You are buying an attorney’s knowledge, experience, and professionalism, you are not buying a refrigerator. If you have had friends who have had to hire a criminal defense attorney in the past, you should first consult with them regarding their experiences. In any event, here are some questions to ask: (1) Does the attorney specialize in criminal law or is criminal law just once of the attorney’s many practice areas? (2) Is the attorney board certified in criminal law? (3) How much experience does the attorney have with your type of case? (4) Did the attorney offer to give you a fee contract that sets out the fee and what he or she will do to defend your case? (5) Did the attorney take time to explain things thoroughly and in plain English? (6) Will the attorney be available to meet with you and take your phone calls after you pay his or her fee? Beware of an attorney that promises a certain result or suggests that they have special influence with the courts or the prosecution. Many criminal defense attorneys in Dallas County will charge a flat fee as opposed to an hourly fee. Nevertheless, in setting the flat fee, a criminal defense attorney will have to estimate how many hours he or she thinks they will put into your case. Beware of attorneys that charge you a very low fee simply to get your case as often the attorney will only put as much time into the case as the fee supports. On the other hand, beware of attorneys that try to take advantage of your situation and charge an exorbitant fee which has no relation to the amount of hours the attorney will need to work on the case.

Learn more about this topic in depth on our board certification page. Both Clint Broden and Mick Mickelsen are board certified in both criminal law and criminal appellate law.

Absolutely. There is a substantial difference between the practice and procedures in federal court as opposed to state court. See our in depth overview of selecting an attorney for a comprehensive answer.

In state court in Dallas County, if you are in jail and unable to make bail, you will often qualify for a court appointed lawyer. As explained above, however, the court appointed lawyer will sometimes be taken away if you are able to post the bond. In federal court, many people qualify for court appointed lawyers because the legal fees charged for federal court representation are normally significantly higher than state court representation. In order to qualify for court appointed counsel in federal court, you will have to submit a financial affidavit and have it reviewed by a magistrate judge. The magistrate judge will determine if you qualify for appointed counsel and may require you to pay some sum in order to defray the costs of the lawyer. Court appointed lawyers often have a bad reputation and, often times, this reputation is not deserved. Like in all other areas of life, there are good and bad court appointed lawyers. The attorneys at Broden & Mickelsen, LLP continue to take a small number of court appointed cases because they believe it is their duty to help those unable to afford quality legal representation. For example, courts have frequently asked attorneys with the firm to represent individuals on appeal who have been sentenced to death. Although our firm gives court appointed cases the same attention as retained cases, the sad fact is that this is the exception rather than the rule. In short, make your decision regarding a court appointed lawyer by the type of attention the lawyer gives your case, not simply by the fact that the lawyer is appointed by the court. Still, with all of this said, a 2007 study was reported in the New York Times discussing the difference between being represented by a public defender as opposed to being represented by a retained attorney in a criminal case. The study was conducted by two economists for Emory University. The study concluded that in serious cases ‘the average sentence for clients of public defenders was almost THREE YEARS longer than the average for clients of private attorneys. Moreover, when all cases were considered, the average sentence for clients of public defenders was almost FIVE YEARS longer than the average for clients of private attorneys. (Source: Emory Study)

This is often a difficult situation. As discussed above, most criminal defense lawyers charge a flat fee and are reluctant to return the fee after it is paid. If you find yourself in this situation, you should start by having a frank discussion with the lawyer, after all the lawyer works for you. Tell the lawyer why you are not satisfied. You should also read your fee contract and you may suggest that the lawyer return a portion of your fee so that you can hire another lawyer. If the problem is significant, you should contact the State Bar Association at (800) 932-1900 to determine if the State Bar can be of any assistance.

It is not proper for the lawyer to make such a request under the Texas Disciplinary Rules of Professional Conduct. Under Rule 1.04(e) of the Texas Disciplinary Rules of Professional Conduct, a lawyer “shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.” In other words, a criminal defense lawyer cannot request a “bonus” that is contingent upon the outcome of a case.

Former prosecutors will argue that experience from “the other side” is a valuable asset. On the other hand, many criminal defense lawyers were trained since the beginning of their careers to develop creative defenses that might not occur to a lawyer with a more prosecutorial frame of mind. Defense lawyers that never worked for the prosecution also have no allegiances and may be more comfortable vigorously challenging the opposition. Although it is a generalization, we find that many former prosecutors, especially those that prosecuted for more than a few years and simply left a prosecution office to make more money, still think like prosecutors. They presume their clients guilty and are less creative in filing motions and setting forth defenses. Also, if you look at their “results” page on their websites, many of the “victories” they are claiming are actually victories as a prosecutor. There is a world of difference between a prosecutor obtaining a “guilty” verdict and a defense attorney obtaining a “not guilty” verdict. Clint Broden and Mick Mickelsen have been defense attorneys their entire careers.

When you hire a partnership, as opposed to a single lawyer, that means that all the partners in the firm have an interest in your case. Many times, you will find a lawyer who seeks to imply that they have associates working for them (for example “Smith and Associates”) when, in fact, they are sole practitioners. Other times you will find lawyers who appear to be part of a law partnership (for example “Smith, Jones and Miller”) when, in fact, they are simply lawyers who share office expenses but who work as sole practitioners. It is always interesting to us to look at attorney websites discussing “our” firm and what “we” do, when we know full well it is solo practice. It is a violation of Texas Disciplinary Rule of Professional Conduct Rule 7.01(e) for a lawyer to create the appearance that he has associates when he is a sole practitioner, or for a lawyer to create the appearance that she is a membership of a law partnership when she simply shares office space with other lawyers. At Broden & Mickelsen, LLP, Clint Broden and Mick Mickelsen are true law partners and share profits equally. In other words, when you hire Broden & Mickelsen, LLP, you are hiring a team. If you are in doubt as to whether a firm is truly a law partnership, you should ask the lawyer you are considering hiring.

Investigation is often a very important part of preparing a defense in a criminal case. A skilled investigator can often obtain information that could result in winning a trial or obtaining a more favorable plea bargain. Likewise, an expert witness can be invaluable in certain types of cases, especially in cases in which the prosecution has its own experts. During your initial meeting with your lawyer, you should discuss the need for an investigator to interview witnesses and possible uses for expert witnesses. It should be clear in the fee contract whether the costs of an investigator and experts are part of the fee to be paid to your lawyer or whether such costs will be additional.

View an in depth article on this topic in our blog.